Ronald C. Den Otter
My new book, Education in Democracy:The Importance of Free Speech in American Public Schools, is about the value of student speech and the
dangers of censorship. Coupled with distrust of government, where school
authorities cannot be trusted to police student speech competently or fairly, I
make an autonomy-enhancing argument, contending that the exercise of free
speech rights by students is constitutionally required in the name of
respecting their autonomy, both as speakers (or writers) and listeners (or
readers). I also explain why this practice over time is conducive to the
development of the autonomous capacities that they will need as they approach
adulthood and democratic citizenship. Ultimately, I defend the perhaps
counterintuitive conclusion that constitutional protection for student speech
is more imperative when students are young and impressionable. Not in spite of
their age, but because of their age, there ought to be few limits regarding
what they can say or write outside the classroom, when they are on campus or
off campus using social media.
At present, with respect to student speech in public schools, U.S. Supreme Court decisions leave a lot to be desired if one cares about not allowing students to be coerced into silence out of fear that they will be punished for expressing what they happen to believe. For free speech purposes, the merits of their beliefs are beside the point. Moreover, since Tinker, which was decided in 1969, these decisions are not nearly as clear as they could be, leaving far too much discretion and inviting selective enforcement. As Justice Thomas wrote in his concurrence in Morse v. Frederick, “students have a right to speak in schools except when they do not.”[1] Under Tinker, school officials may only limit student speech if it is reasonable for school officials to conclude that the speech in question will substantially disrupt the educational environment, undermine school discipline, or violate the rights of other students. While this decision is a vast improvement over subsequent decisions, which curtailed the free speech rights of students, it still gives school officials too much power to limit student speech that may be valuable. That is so because it remains easy for school officials to allege that student speech will threaten school discipline or be substantially disruptive.
In Bethel School
District v. Fraser, the Court allowed school officials to censor student
speech that was lewd and plainly offensive. This exception to Tinker implies
that a school could ban sexually explicit speech even when that speech
is somewhat political, which outside the context of public schools, would be
presumptively constitutionally protected unless it were, legally speaking,
obscene. On top of that, this decision could be read more broadly to authorize
school officials to censor student speech that they deem inappropriate or
offensive even if it lacks sexual innuendo. Hazelwood School District v. Kuhlmeier
empowers school officials to prohibit speech in school-sponsored activities
that bear the imprimatur of the school, like the school newspaper, plays,
dances, and sporting events. This ruling would mean that a school might be able
to ban football players, who represent the school, from taking a knee during
the playing of the national anthem to protest police brutality, as long as the
sporting event qualifies as a school-sponsored event and the school can show
that the restriction on the player’s speech is reasonably related to a
legitimate educational interest, such as teaching respect for the flag or the
police. Likewise, school officials, with different political views, probably
could ban the football team from wearing armbands that read “Blue Lives Matter.”
In Morse, the “Bong Hits for Jesus” case, the Court made another exception to Tinker,
ruling that schools could ban speech that advocates illegal drug use, prompting
Justice Thomas in his concurrence to propose that Tinker should be explicitly overruled. As Justice John Paul Stevens implies
in his dissent, this decision could be read more broadly as permitting some
viewpoint discrimination, which normally would be, without question,
constitutionally impermissible elsewhere. Mahanoy, which the Court decided several years ago, may seem like a long
overdue victory for student speech, but eight of the justices ended up protecting
a student’s crude speech (and gesture) on social media when she was off campus,
in a parking garage at a mall on the weekend.
My objective is not only
to go much farther than the Court did in Tinker by spelling out why
almost all student speech should be constitutionally protected but to clarify
what the law should be. The clearer the legal rule or standard is, the harder
it will be for school officials to restrict student speech without adequate
justification and the harder it will be for judges to permit such restrictions
when they are litigated. That is not to say that a clearer precedent itself
could prevent school officials from restricting student speech that is
unequivocally constitutionally protected, yet it is to say that as much as
possible, the Court should make it more difficult for them to do so if they are
so inclined. For now, due to this lack of clarity in this area of First
Amendment law, those who have little sympathy for student speech can construe
the relevant precedents broadly and can emphasize some decisions over others,
allowing their own political preferences to determine whether the student
speech in question can be banned. In other words, a lack of clarity facilitates
viewpoint discrimination. After all, for many school officials and teachers,
their primary concern will be the enforcement of school discipline so that
understandably, it will be easier for them to do their jobs, including avoiding
controversy. However, that tendency is troubling when this discretion would
enable a school official to censor student speech that either is, or at least
should be, constitutionally protected, and most likely would be protected if
the speaker were an ordinary adult or a student off campus.
In making the case that
student speech should receive considerably more constitutional protection than
it has received in the past, I know that I will not come close to persuading
everyone, such as school officials and teachers who are on the front lines, so
to speak, and have a very difficult job to do. Nevertheless, I hope that what I
have to say will resonate with many of those who are on both the left and the
right of the American political spectrum. What I mean by that is despite deep
partisan differences, it may be possible to convince those who are on different
ideological teams that they have good reasons not to give school officials the
authority to censor so much student speech. Because school officials at a
particular school could be progressive or conservative, an individual has no
way of knowing in advance whether the political views that she favors --or
those of her children-- will be at risk of being censored if she were thinking
about the situation from an impartial standpoint. Each person should assume
that in the absence of constitutionally protecting almost all student speech,
her worst political “enemy” will be deciding which student speech can be
silenced. The best rule, then, would be to not empower school officials to
censor student speech.
One might believe that
Americans can learn about the importance of free speech in other places,
outside of school, when they are young, and to some degree that is true. But it
strikes me that a public school is an ideal place for such learning to take
place. First, about 90% of Americans still attend public schools, even when
home-schooling and private schools remain an option for some of them. Second,
students spend a considerable amount of their time in school during the
academic year where they must interact with others, some or many of whom may be
different than they are. Third, many of them will not attend college. Thus,
junior high and high school will be their only opportunity to be exposed to the
various dimensions of free speech in an educational environment. Fourth, when
it comes to free speech, there really is no substitute for learn by doing.
Although it is imperative that students learn about famous free speech cases in
their high school government course and discuss freedom of expression in the
abstract, I doubt that an experience in the classroom would substitute for the
actual experience of either expressing a political view about, say, healthcare,
the war on drugs, mass incarceration, or police brutality, or having to deal
with speech that one really disagrees with in face-to-face interactions. Fifth,
there are almost always non-censorious alternatives.
The most serious
difficulty with not protecting enough student speech is that it is terribly
inconsistent with the most appropriate understanding of modern free speech
doctrine and its underlying principles. That is an unjustifiable double
standard where restrictions on speech that ordinarily are not permissible are
allowed in an educational setting (where they would be on a college campus, for
instance) when at least arguably, free speech rights are even more important.
Once one can show that a public school is, for the most part, best thought of
as a kind of public forum for students, who have a constitutional right to
express themselves and others have a right to hear them, then it becomes much
more difficult to defend restrictions on student speech. When school officials
censor such speech, whether they realize it, they are indoctrinating them
instead of appealing to their rational faculties. At the end of the day, school
authorities must start acting within the limits of the First Amendment.
Ronald C. Den Otter, is Professor of Political Science, California Polytechnic State University, San Luis Obispo. You can reach him by e-mail at denotter@calpoly.edu.